Mr. Background Check Went to Washington

Nick Fishman

I had the honor of representing the National Association of Professional Background Screeners (NAPBS) along with 20 other colleagues from the screening industry on their annual Washington DC lobbying event.  We had a busy schedule of meetings over a two day time period highlighted by sessions with the EEOC, FTC and officers of our nation’s senators and congressmen.

We met with staffers from the following legislators: Senator Chuck Grassley (Republican-Iowa), Senator Kay Bailey Hutchison (Republican-Texas), Senator Mark Warren (Democrat- Virginia), Congressman Sam Johnson (Republican-Texas), Congressman Rodney Frelinghuysen (Republican- New Jersey), Senator Charles Schumer (Democrat- New York), Sentor Orrin Hatch (Republican- Utah), Senator Kay Hagan, Democrat, North Carolina, Senator Arlen Specter (Republican- Pennsylvania), Congressman Lamar Smith (Republican- Texas), Senator Byron Dorgan (Democrat- North Dakota), Senator Patrick Leahy (Democrat- Vermont), Congressman James Moran (Democrat- Virginia), Senator John Kerry (Democrat- Massachusetts), Senator Dianne Feinstein (Democrat- California), Senator Benjamin Cardin (Democrat- Maryland), Senator John Ensign (Republican- Nevada) and Senator Johnny Isakson (Republican- Georgia).  Our meetings primarily focused on three core issues which are being addressed in upcoming legislation:

Senate  Bill 163 (Child Protection Improvements Act of 2009)- Calls for the development of a mandatory background screening process for child care givers (day care, teachers, camps, etc.).  As an industry, we fully support this legislation.  However, we have concerns about the type of background check that the bill calls for, particularly its reliance on the FBI Criminal Database and state criminal record repositories.  It is a commonly held misconception that these two resources are the most accurate and reliable resources for conducting background checks.  In reality, there are far more effective methods for determining whether someone has been convicted of criminal activity.  The most thorough, accurate and reliable method being a county criminal record search in all counties where the subject has resided under all names used complemented by a National Criminal Record Search which includes a multi-jurisdictional Sex Offender Registry Search.

Senate Bill 141 and House Resolution 122 (Protecting the Privacy of Social Security Numbers Act of 2009)- This bill is aimed at curbing identity theft and calls for a limitation on how Social Security Numbers can be used in commercial situations.  Such measures include restricting access to public records which contain this information.  There is a provision to protect the continued permissible use of personal identifiers for legitimate purposes such as background screening and our efforts focused around reinforcing the need for this language and educating staffers on the importance for these identifiers.

Extension of E-Verify Program This internet-based system is operated by the Department of Homeland Security and the Social Security Administration and allows employers to electronically verify the employment eligibility of their employees.  House Resolution 1105 reauthorized the program through 9/30/09 and we support further extension of this important government program.

Meeting with the EEOC

This was a truly enlightening experience.  We met with Carol R. Miaskoff who is an Assistant Legal Counsel for the agency.  Carol shared with us the role of the EEOC and its stance on background checks.  She was very clear that the EEOC did not have a problem with background checks as anexercise proper due diligence.  Where they do take exception is with bright line policies such as “do not hire anyone with a criminal record”.  They believe that such policies would have a disparate impact on minorities.  We spent a great deal of time discussing El v. Septa as it will continue to be an important force in future guidelines on background screening.  At the end of the day, the EEOC wants employers to demonstrate job relatedness, the nature of the offense, whether the candidate was a repeat offender and how long ago the crime was committed.

Meeting with the FTC

I was not there for this meeting but I understand that much of the meeting focused on the privacy issues previously mentioned on SB 141 and HR 122.

I was a truly an enlightening experience which provided much insight into our legislative process.  I am confident that the work we accomplished in just two days will have a positive impact on our industry and on employers that rely on the use of employment background checks.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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  • anonymous

    I live in Cal. After working for my company for 3 years they performed a background check on me and found that I had a felony conviction from 13 years ago that I did not disclose on my job application. They terminated me on the basis of lying on application even though I knew 7 year limit when I filled out application. I have found a good employment attorney who is decided to take case. Any further advice or comments would be helpful. Thanks

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